1. “Can an appellate court disregard the issue of error preservation so that the State has a remedy when a capital murder case is dismissed because of the State’s own actions in disappearing a confidential informant?”
2. “Can an appellate court reverse a trial court’s dismissal under TRE 508 without ever addressing the untrustworthiness of the State’s position that the State does not know the identity of the confidential informant?”
Under the State’s theory, Lerma and others attempted to rob a pair of drug-dealing roommates. One of the roommates, Alejandro, fired at the intruders and wounded two of them. Alejandro’s shots also killed his roommate, Espino. Lerma and his accomplices were charged with capital murder of Espino. Alejandro was not.
During discovery, Lerma’s counsel learned that three months before the shooting, a confidential informant made a controlled buy from Espino but Espino was not prosecuted. The defense theorized that Alejandro may have discovered this and used the opportunity of the robbery to shoot Espino—on the belief that Espino was a CI. The defense asked the trial court for access to the files of the narcotics task force. The prosecutor responded that this theory was speculative and relayed that the task force had never used Espino as a CI. The trial court ordered that the files be turned over, including information on the CI who bought marijuana from Espino. The State objected that this was privileged information under Rule of Evidence 508.
At a hearing under Rule 508(c)(2)(C)(i) months later, several members of the task force explained that they no longer knew the CI’s identity because they had neglected to document it. The CI broke off contact after the controlled buy, and, despite a search of the task force’s files and phone records, the task force only had their memories of observing the buy, which gave them a partial description, but no name or other way to discover his identity. The trial court found this incredible, particularly as the State had earlier vigorously insisted on protecting the CI’s identity against disclosure. The judge found there was a reasonable probability that the CI could give testimony concerning Lerma’s innocence “if we knew who he was.” The trial court then granted Lerma’s motion to dismiss the capital murder indictment under Rule 508(c)(2)(A)(i).
The State appealed. The court of appeals agreed that Lerma did not meet his burden under Rule 508 of showing a reasonable probability that the informant could give testimony necessary to a fair determination of his guilt or innocence. The task force witnesses testified that defense counsel’s theory was “possible,” not probable or reasonably probable, and no one was aware of any evidence that might substantiate the theory. The court of appeals also found no link between the CI and the capital murder. It held that the theory was “mere conjecture or supposition about possible relevancy” and reversed the trial court’s dismissal order.
Lerma first argues the State should not be able to win a reversal on a ground it never timely objected to, i.e., sufficiency of the trial court’s “necessary to a fair determination” finding. Objection to the ultimate dismissal, which occurred much later, was not enough to preserve error. He argues the trial judge lacked the opportunity to sufficiently articulate the basis for its finding because it believed the State was not opposed. Instead, the State’s only preserved ground was that it did not “elect” not to disclose the CI’s identity for purposes of Rule 508.
Lerma also contends the trial court’s finding is supportable. He argues that if the State’s witnesses would go to such great lengths to lie about not knowing the CI’s identity, the trial court could properly infer that the CI must know something necessary to a fair determination of guilt or innocence. Lerma questions how a trial court or defense attorney can rationally meet any standard regarding what information the informant can provide when the State is untruthful and refuses to provide the trial court with any information. He argues that the rule was intended to provide the defense with a sword to dismiss the prosecution if the State refused to disclose the identity of a CI with information relevant to innocence. He contends the court of appeals has permitted law enforcement a loophole: bad actors need only claim they do not know the identity of a CI to circumvent a trial court’s disclosure order.